David Lee Tucker v Hamilton Properties Ltd

• Jurisdiction: Bermuda
• Judgment Date: 11 December 2017
• Date: 11 December 2017
• Docket Number: Civil Jurisdiction 2016 No 218
• Court: Supreme Court (Bermuda)

[2017] Bda LR 136

In The Supreme Court of Bermuda

Civil Jurisdiction 2016 No 218

Between:

David Lee Tucker

Plaintiff

and

Hamilton Properties Limited

Defendant

Ms S Tucker for the Plaintiff

Mr M Godfrey for the Defendant

The following cases were referred to in the judgment:

Lawrance v Lord Norreys and ors (1890) 15 App Cas 210

Electra Private Equity Partners v KPMG Peat Marwick [1999] EWCA Civ 1247

Bailey v Wm Meyer & Co Ltd [2017] Bda LR 5

E (a minor) v Dorset CC [1994] 4 All ER 640

Performing Rights Society v Bermuda Cablevision Ltd [1997] Bda LR 33

Jones v Stewart Technology Services Ltd [2017] Bda LR 117

Hunter v Chief Constable [1982] AC 529

GAB Robins (UK) Ltd v Triggs [2008] ICR 529

Robinson v Elbow Beach Hotel [2005] Bda LR 8

Board of Trustees of Marlborough Girls College v Sutherland [1999] BZCA 149

Thomas v Fort Knox Bermuda Ltd and ors [2009] Bda LR 67

Johnson v Unisys [2001] ICR 480

Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1

Richardson v Air Care Ltd [2015] Bda LR 8

Roberts and Hayward v Minister of Labour, Home Affairs & Public Safety [2008] Bda LR 47

Kimathi and Tucker v Attorney General [2017] Bda LR 40

Application to strike out — Wrongful dismissal — Unfair dismissal — Age, disability and place of origin discrimination

RULING of Subair Williams R

Introductory

1. The Parties in this matter appear before the Court on the Defendant's summons, dated 31 August 2017, for an order to strike out the Plaintiff's Re-Amended Writ of Summons pursuant to Order 18 Rule 19 of the Rules of the Supreme Court 1985 (RSC O.18/19).

2. The Defendant's application to strike out the Plaintiff's claims is made on the following grounds:

• i. It discloses no reasonable cause of action;

• ii. It is scandalous, frivolous and vexatious;

• iii. It is an abuse of process; and

• iv. It is misconceived and unsustainable

Background Facts

3. The Plaintiff was employed by the Defendant hotel where he worked as a bartender for a period just exceeding 10 years. By written notice, dated 17 December 2015, the Defendant was summarily dismissed from his employment.

4. On the case pleaded by the Defendant, the Plaintiff's termination resulted from serious misconduct. However, the Plaintiff alleges that he was mistreated during the course of his employment and that the true reasons for his dismissal were muffled behind what was stated in the written termination notice.

5. According to the Plaintiff, his physical disability and his age were the real reasons for his summary dismissal. The Plaintiff complains that he was expected to carry heavy objects in contravention of the express terms of the Agreement. His inability to do so was attributable to the seniority of his age and diagnosed back ailments.

6. The Plaintiff also claims that the other concealed reason for his sudden dismissal was owing to his place of origin and his affiliation with the well-known controversy concerning a presentation on the subject of homosexuality delivered by a non-Bermudian guest speaker named Ayo Kimathi.

7. The Plaintiff was also a Shop Steward of the Bermuda Industrial Union. It is against this background that he also claims discrimination by reason of his union affiliation.

8. Counsel for the Defendant/Applicant, Mr. Godfrey, submits that the recoverable loss for the breach of contract claims is below $25,000. Accordingly, Mr. Godfrey invites this Court to send this matter to the Magistrates' Court for final determination if the discrimination claims are struck out.

The Law on Striking out Pleadings (RSC O.18/19)

Strike out RSC Order 18/19(1)

9. RSC Order 18/19(1) provides that the Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of the writ in the action, or anything in any pleading or in the indorsement, on the ground that:

• (a) it discloses no reasonable cause of action or defence, as the case may be;

• (b) it is scandalous, frivolous or vexatious;

• (c) it may prejudice, embarrass or delay the fair trial of the action; or

• (d) it is otherwise an abuse of the process of the court

10. RSC Order 18/19(1) also empowers the Court to make an order for the action to be stayed or dismissed.

General Approach

11. The principles of law applicable to the strike-out of a claim were no source of contention between the parties. This area of the law has been well recited in previous decisions of this Court. In general synopsis, strike out applications ought not to be misused as an alternative mode of trial. It is not a witness credibility or fact finding venture and for good reason. The evidence before the Court at this stage is not oral and has not yet been tested through cross-examination. A strike out application, in reality, is a component of good case management. Where the pleadings are so bad on its face and so obviously bound for failure, the Court should strike it out.

12. That is not to say that a strike-out order should stand as the remedy for a badly pleaded statement of claim which can be cured by an amendment (see Lawrance v Lord Norreys(1890) 15 App Cas 210) On the other hand, the inference to be drawn from facts unsupported by the affidavit evidence may be either the evidence was not deemed sufficient or important enough to be put forward or it was known that the asserted facts were incapable of being proved.

13. In Electra Private Equity Partners (a limited partnership) v KPMG Peat Marwick[1999] EWCA Civ 1247 p 613 Auld LJ said:

“It is trite law that the power to strike-out a claim under RSC Order 18 Rule 19, or in the inherent jurisdiction of the court, should only be exercised in plain and obvious cases. That is particularly so where there are issues as to material, primary facts and the inferences to be drawn from them, and where there has been no discovery or oral evidence. In such cases…to succeed in an application to strike-out, a defendant must show that there is no realistic possibility of the plaintiff establishing a cause of action consistently with his pleading and the possible facts of the matter when they are known. Certainly, a judge, on a strike-out application where the central issue is one of determination of a legal outcome by reference to as yet undetermined facts, should not attempt to try the case on the affidavits… There may be more scope for an early summary judicial dismissal of a claim where the evidence relied upon by the Plaintiff can properly be characterised as shadowy, or where the story told in the pleadings is a myth and has no substantial foundation…

However, the court should proceed with great caution in exercising its power of strike-out on such a factual basis when all the facts are not known to it, when they and the legal principle(s) turning on them are complex and the law, as here, is in a state of development. It should only strike out a claim in a clear and obvious case. Thus, in McDonald's Corp v Steel[1995] 3 ALL ER 615 at 623, Neill LJ… said that the power to strike out was a Draconian remedy which should be employed only in clear and obvious cases where it was possible to say at the interlocutory stage and before full discovery that a particular allegation was incapable of proof.

Determination of a strike-out application is a component of active Case Management

14. The Court's determination of a strike-out application is a component of active case management. Essentially, the Court is required to identify the issues to be tried at an early stage of the proceedings and to summarily dispose of the others. This is aimed to spare unnecessary expense and to ensure that matters are dealt with expeditiously and fairly.

15. As a starting point, the Court must have regard to the Overriding Objective stated at RSC Order 1A:

1A/1 The Overriding Objective

• (1) These Rules shall have the overriding objective of enabling the court to deal with cases justly.

• (2) Dealing with a case justly includes, so far as is practicable-

  • (a) ensuring that the parties are on equal footing;

  • (b) saving expense;

  • (c) dealing with the case in ways which are proportionate-

    • (i) to the amount of money involved;

    • (ii) to the importance of the case;

    • (iii) to the complexity of the issues; and

    • (iv) to the financial position of each party;

  • (d) ensuring that it is dealt with expeditiously and fairly; and

  • (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases

1A/2 Application by the Court of the Overriding Objective

• 2 The court must seek to give effect to the overriding objective when it-

  • (a) exercises any power given to it by the Rules; or

  • (b) interprets any rule.

1A/3 Duties of the Parties

• 3 The parties are required to help the court further the overriding objective.

1A/4 Court's Duty to Manage Cases

• 4 (1) the court must further the overriding objective by actively managing cases.

• (2) Active case management includes-

  • (a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

  • (b) identifying the issues at an early stage;

  • (c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

  • (d) deciding the order in which issues are to be resolved;

  • (e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

  • (f) helping the parties to settle the whole or part of the case;

  • (g) fixing timetables or otherwise controlling the progress of the case;

  • (h) considering whether the likely benefits of taking a particular step justify the cost of taking it;

  • (i) dealing with as many aspects of the case as it can on the same occasion;

  • (j) dealing with the case without the parties needing to attend at court;

  • (k) making use of technology; and

  • (l) giving directions to ensure that the...